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42.—(1) A designated authority may impose a penalty of such amount as it considers appropriate on a relevant person who fails to comply with any requirement in regulation 7(1), (2) or (3), 8(1) or (3), 9(2), 10(1), 11(1), 14(1), 15(1) or (2), 16(1), (2), (3) or (4), 19(1), (4), (5) or (6), 20(1), (4) or (5), 21, 26, 27(4) or 33 or a direction made under regulation 18 and, for this purpose, “appropriate” means effective, proportionate and dissuasive.
(2) The designated authority must not impose a penalty on a person under paragraph (1) where there are reasonable grounds for it to be satisfied that the person took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with.
(3) In deciding whether a person has failed to comply with a requirement of these Regulations, the designated authority must consider whether he followed any relevant guidance which was at the time—
(a)issued by a supervisory authority or any other appropriate body;
(b)approved by the Treasury; and
(c)published in a manner approved by the Treasury as suitable in their opinion to bring the guidance to the attention of persons likely to be affected by it.
(4) In paragraph (3), an “appropriate body” means any body which regulates or is representative of any trade, profession, business or employment carried on by the alleged offender.
(5) Where the Commissioners decide to impose a penalty under this regulation, they must give the person notice of—
(a)their decision to impose the penalty and its amount;
(b)the reasons for imposing the penalty;
(c)the right to a review under regulation 43; and
(d)the right to appeal under regulation 44(1)(a).
(6) Where the Authority, the OFT or DETI proposes to impose a penalty under this regulation, it must give the person notice of—
(a)its proposal to impose the penalty and the proposed amount;
(b)the reasons for imposing the penalty; and
(c)the right to make representations to it within a specified period (which may not be less than 28 days).
(7) The Authority, the OFT or DETI, as the case may be, must then decide, within a reasonable period, whether to impose a penalty under this regulation and it must give the person notice of—
(a)its decision not to impose a penalty; or
(b)the following matters—
(i)its decision to impose a penalty and the amount;
(ii)the reasons for its decision; and
(iii)the right to appeal under regulation 44(1)(b).
(8) A penalty imposed under this regulation is payable to the designated authority which imposes it.
Explanatory Memorandum sets out a brief statement of the purpose of a Statutory Instrument and provides information about its policy objective and policy implications. They aim to make the Statutory Instrument accessible to readers who are not legally qualified and accompany any Statutory Instrument or Draft Statutory Instrument laid before Parliament from June 2004 onwards.
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